El Centro Municipal Code § 18-136 Responsibility of parents and others

Footnotes:

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Editor's note— Ord. No. 17-08, § 1, adopted June 20, 2017, amended Art. VII in its entirety to read as herein set out. Former Art. VII, §§ 18-130—18-145, pertained to similar subject matter, and derived from Ord. No. 94-8, § 3; Ord. No. 12-05, §§ 1—3, 5-15-12.

The city council does hereby find that:

(a) The increase of graffiti on both public and private buildings, structures, and in other places creates a condition of blight within the city, which can result in the actual or perceived deterioration of property values, business opportunities, and enjoyment of life for persons using adjacent and surrounding properties.

(b) The continued existence of graffiti is inconsistent with the city's standards for property maintenance, crime prevention, and aesthetic standards; and, unless graffiti is quickly removed from public and private properties, other properties soon become the target of graffiti vandalism.

(c) Graffiti, defacement and other similar acts of vandalism are inimical and destructive of the rights of owners and tenants, and to the values of public and private property, and thus are injurious to the community welfare.

(d) The presence of graffiti and graffiti-attracting surfaces within the city are public nuisances.

(e) The purposes of this article are to protect the public welfare by providing for the abatement of graffiti as a public nuisance in addition to the remedies provided for graffiti vandalism as a violation of state law, prescribing penalties for violation of the provisions of this article and of state law, establishing a graffiti abatement program as authorized by Government Code Section 53069.3, and establishing a cost-recovery program to assist the city in the eradication of graffiti.

(Ord. No. 17-08, § 1, 6-20-17)

The following words and phrases, whenever used in this article, shall be construed as defined in this section:

(a) Aerosol paint container means any container, regardless of the material from which it is made, which is adapted or made for the purpose of spraying paint or other similar substances capable of defacing property.

(b) City property means any property owned by the City of El Centro, including property owned by the El Centro Regional Medical Center.

(c) City costs means any and all costs incurred in connection with the removal of any graffiti, whether caused by a minor or other person, including all abatement costs, attorneys' fees, court costs, removal costs, costs of repair and/or replacement, and the law enforcement costs incurred by the city in identifying and apprehending the minor or other person. The city council finds and determines based upon a review of its expenditures for graffiti abatement that the minimum amount of cost be collected is $500.00. Such costs shall be determined pursuant to City Code sections 18-65 et seq. regarding cost recovery

(d) Defacement means the intentional altering of the physical shape or appearance of property.

(e) Felt-tip marker means any indelible marker or similar implement with a tip that, at its broadest width is greater than one-eight inch, and contains ink that is not water-soluble.

(f) Glass etching tool means a masonry or glass drill bit, a carbide drill bit, a glass cutter, a grinding stone, an awl, a chisel, a carbide scribe or any other device which may be used to mark glass or other surfaces.

(g) Graffiti or other inscribed material means any unauthorized inscription, word, figure, mark, or design that is written, marked, etched, scratched, drawn, or painted on any real or personal property. "Graffiti" does not include markings upon any surface for utility connections or service or for construction activities authorized by law or regulation.

(h) Graffiti-attracting surface means any surface of a building, fence, or other structure on a parcel of land which has been defaced with graffiti after removal more than five (5) times during any continuous period of six (6) months.

(i) Graffiti implement means any implement capable of marking a surface to create graffiti, including but not limited to a spray actuator, paint sticks, felt-tip markers, or glass etching tools; except "graffiti implement" does not mean an aerosol paint container, the furnishing, sale, and possession of which is regulated by Penal Code section 594.1.

(j) Graffiti removal authorization means a written agreement executed by a responsible person or owner's representative that authorizes the city to remove graffiti and releases and holds harmless the city, its officers, agents, contractors and employees from liability.

(k) Minor means a person less than the age of eighteen (18) and includes a minor who has confessed to, admitted to, or pled guilty or nolo contendere to a violation of section 594, 594.3, 640.5, 640.6, or 640.7 of the Penal Code, or a minor convicted by final judgment of a violation of section 594, 594.3, 640.5, 640.6, or 640.7 of the Penal Code, or a minor declared a ward of the juvenile court pursuant to section 602 of the Welfare and Institutions Code by reason of the commission of an act prohibited by section 594, 594.3, 640.5, 640.6, or 640.7 of the Penal Code.

(l) Other person means a non-minor who has confessed to, admitted to, or pled guilty or nolo contendere to a violation of section 594, 594.3, 640.5, 640.6, or 640.7 of the Penal Code.

(m) Owner's representative means any person or entity expressly authorized by the owner of any property to permit another person to place inscriptions, works, figures, or designs upon such property, or any person or entity in lawful possession of any property, whose right of possession includes the authority to permit or allow inscriptions, words, figures or designs to be placed upon such property.

(n) Paint stick means a device containing a solid form of paint, chalk, wax, epoxy or other similar substance capable of being applied to a surface by pressure, and upon application, leaving a mark of at least one-eighth of an inch in width, visible from a distance of twenty (20) feet, and not water-soluble.

(o) Public place means any park, playground, swimming pool, or similar recreational facility, other than a highway, street, alley or way, posted with a sign placed in a reasonable location stating it is a misdemeanor under Penal Code section 594.1 to possess an aerosol container of paint in that area without valid authorization, and stating the infractions contained in this article.

(p) Public property means any property, other than a highway, street, alley or way, owned by any public agency except the City of El Centro.

(q) Responsible person means any person who owns, controls, or possesses property or who has primary responsibility for the repair or maintenance of property.

(r) Spray actuator means any object, including a spray tip, nozzle and button, which is capable of being attached to an aerosol paint container for the purpose of spraying the substance contained therein.

(s) Un-emancipated minor means a minor who is not or has not been married or who is under the care, custody and control of such person's parent(s) or legal guardian(s) as determined under state law.

(Ord. No. 17-08, § 1, 6-20-17)

(a) It shall be unlawful for any minor to have in his or her possession any graffiti implement while upon city property, public property, any public place, or upon private property, without the consent of the property owner or the owner's representative, whose consent has been given in advance while such person was in the possession of a graffiti implement. This section summarizes provisions of state law to be prosecuted under the applicable Penal Code section.

(b) The prohibition imposed in subsection (a) shall not apply when the minor is attending, or traveling to or from a school at which the minor is enrolled, if the minor is participating in a class at said school, which has, as a written requirement of said class, the specific use of felt-tip markers, paint sticks, or other graffiti implements for educational purposes.

(Ord. No. 17-08, § 1, 6-20-17)

It is unlawful for any person, other than a parent or legal guardian, to sell, exchange, give, loan, or otherwise furnish, or cause or permit to be exchanged, given, loaned or otherwise furnished any graffiti implement to any minor without the presence of the parent, or other lawfully designated custodian of the person, which written custodial consent shall be given in advance. This section summarizes the provisions to be prosecuted under the applicable Penal Code sections.

Nothing in this section shall be construed to waive the restrictions on the display of aerosol cans set out in City Code section 18-131.

(Ord. No. 17-08, § 1, 6-20-17)

(a) Pursuant to Penal Code section 594.1, no person, other than an officer, employee, or agent of the City of El Centro, is authorized to carry on his or her person and in plain view to the public an aerosol container of paint while in any posted public facility, park, playground, swimming pool, or other recreation area within the city.

(b) The city manager shall cause signs to be posted at each location specified under subsection (a) stating that it is a misdemeanor under Penal Code section 594.1 to possess aerosol paint containers in that specific public facility, park, playground, swimming pool, or other recreational area within the city.

(c) It is unlawful for any person, other than an officer, employee or agent of the city, to carry any graffiti implement on city property or in any public place within the city.

(d) It is unlawful for any person to carry any graffiti implement on public property, without the prior written authorization of the owner of such public property.

(Ord. No. 17-08, § 1, 6-20-17)

(a) It is unlawful for any person to apply graffiti markings upon any surface or real or personal property within the city, whether such property is publicly or privately owned, or natural or manmade.

(b) A violation of this section constitutes a public nuisance and may be abated by any means authorized by law.

(c) A violation of this section may be abated simultaneously with or as the result of a criminal prosecution under the Penal Code.

(Ord. No. 17-08, § 1, 6-20-17)

(a) No person shall sell any pressurized can containing any substance commonly known as paint or dye to a minor and no minor shall purchase any pressurized can containing paint or dye.

(b) No person shall have in his or her possession any pressurized can containing any substance commonly known as paint or dye while in any public place in the city. This section does not apply to any authorized employees of the city or any entity under contract with the city or any representative of another governmental entity while in the performance of his/her official duties for such governmental entities.

(c) Nothing in this section shall be construed to waive or change the provisions of City Code Section 18-131 providing restrictions on the display of pressurized paint cans.

(Ord. No. 17-08, § 1, 6-20-17)

It is unlawful for any person to assist, aid, abet, allow, permit or encourage another to violate any provision of this article, by word, overt act, failure to act or by lack of supervision and control over minors.

(a) Pursuant to California Civil Code section 1714.1(b), where graffiti is applied by an un-emancipated minor as the result of the willful misconduct of said minor, the parent(s) or legal guardian(s) of said minor shall be jointly and severally liable, with such minor, for payment of civil damages resulting from the misconduct of the minor. The amount of such liability shall not exceed $40,600 for each such offense or any higher amount authorized by any amendment to California Civil Code section 1714.1(b). Such civil damages shall include, but are not limited to, be the city's costs as determined under section 18-131(c) above. The parent(s) or legal guardian(s) of said minor shall also be civilly liable for any reward paid pursuant to this article or other applicable law.

(b) The liability set out in (a) above shall be a personal obligation of each parent or guardian and shall constitute a special assessment on property owned by each parent or guardian as set out in section 18-69 of this Code.

(c) Pursuant to and in accordance with Government Code sections 38772, 38773.2 and 38773.6, parent(s) or guardian(s) having custody and control of the unemancipated minor shall be jointly and severally liable with the minor for the costs expended by the city (as defined in section 18-131(c) above) when such joint and several liability is applicable. If payment is not made within thirty (30) days from the date of the accounting and a demand for payment, the payment shall be deemed delinquent and shall be subject to a penalty assessment of one hundred dollars ($100) plus interest on the unpaid amount, which interest shall accrue at the rate of one and one-half (1.5) percent per month until paid or as otherwise allowed by law.

(d) Disposition of a criminal prosecution relating to placement of graffiti does not preclude the city from seeking full cost recovery as provided in this article.

(e) The city is authorized to initiate legal action to enforce this article or to recover such costs by any means allowed by law, including, but not limited to wage garnishments or levy on personal bank accounts of the parent, minor or other person.

(Ord. No. 17-08, § 1, 6-20-17)

(a) Pursuant to Government Code section 38772, any person who places graffiti on any city property, public property, public place or privately owned structure, building or property, including natural and manmade objects within the city, shall be personally liable for any and all costs incurred in connection with the removal of any graffiti caused by that person, including all costs set out in section 18-131(c) above, and any additional liability or penalties imposed by this article. Such liability shall be a personal obligation and shall constitute a special assessment on property owned by such person pursuant to section 18-69 of this Code.

(b) Disposition of a criminal prosecution relating to placement of graffiti does not preclude the city from seeking full cost recovery as provided in this article.

(c) The city is authorized to initiate legal action to enforce this article or to recover such costs by any means allowed by law, including, but not limited to wage garnishments or levy on personal bank accounts of the parent, minor or other person.

(Ord. No. 17-08, § 1, 6-20-17)

Liability of a minor or any other person for placement of graffiti constituting a public nuisance may be determined by any confession or admission, or any guilty plea, nolo contender plea or conviction regarding any violation of the Penal Code relating to graffiti or any other federal, state or local law relating to graffiti. The amount of such liability shall by the city's costs as defined in section 18-131(c) and any additional liability or penalties imposed by this article.

(Ord. No. 17-08, § 1, 6-20-17)

In the event that any non-minor or a minor and that minor's parent or guardian are determined to be liable for costs and civil penalties as set out in this article, but are unable to pay all or a portion of that amount, the city may allow an offset against such liability by the performance of community service for graffiti abatement and litter control under the supervision of city officials. The hourly value of such community service time shall be the state mandated minimum wage.

(Ord. No. 17-08, § 1, 6-20-17)

(a) It is the intent of the city council that violations of this article be prosecuted to the maximum feasible extent under the Penal Code and by the city for a public nuisance, as applicable.

(b) It is the intent of the city council that any community service ordered by a court for any violation of this article or of Penal Code section 594, 640.5, 640.6, or 640.7 for vandalism or graffiti-related offenses shall, at a minimum, be for a period of forty (40) hours, unless state law establishes a lower maximum for that specific crime.

(c) It is further the intent of the city council that at least one-half of the hours of community service ordered by a court upon conviction of a minor under this article or the Penal Code, shall be performed in the presence of, and under the direct supervision of, the minor's custodial parent or legal guardian, to the extent permitted by law.

(d) It is the intent of the city council that persons ordered to perform "community service" under the direction of officials of the City of El Centro shall be assigned generally to graffiti abatement and litter control within the city.

(e) Unless otherwise specified by law, any person who violates section 18-135 or section 18-135.5 shall be guilty of a misdemeanor unless prosecuted as an infraction pursuant to City Code section 1-12.

(f) Upon entry of a second or subsequent civil or criminal judgment within a two-year period finding that any person is responsible for the unlawful application of graffiti, a fine in the amount of three (3) times the cost of abatement shall be paid by the violator(s).

(g) Any person who places graffiti on any city property, public property, public place or privately owned structure, building, or property, including natural and manmade objects within the city, shall be liable for a civil penalty not to exceed one thousand dollars ($1,000.00) for each violation. This civil penalty may be sought in addition to any other remedy. The city may seek recovery by any means authorized by law. The parent or legal guardian having custody and control of the minor offender shall be jointly and severally liable with the minor.

(Ord. No. 17-08, § 1, 6-20-17)

(a) Pursuant to Government Code section 53069.3, the city manager is authorized to use public funds, if necessary, for graffiti removal on public and private property as part of a graffiti removal and prevention program. Such program shall provide for the removal of graffiti or painting or repairing of graffiti-damaged property.

(b) The program established hereunder shall not authorize or undertake to provide for the painting or repair of any more extensive an area than where graffiti is located on any property, unless the city manager, or designee, finds and declares in writing that a more extensive area is required to be repainted or repaired in order to avoid an aesthetic disfigurement to the neighborhood or community, and the responsible person agrees to pay for the costs of repainting or repairing the more extensive area.

(c) The program will include a component to assist property owners who are unable to pay for the costs of removal or repainting of graffiti-damaged surfaces, as provided in this article.

(d) The program established hereunder may include, but shall not be limited to, use of city employees, volunteers, work teams from the California Youth Authority and state prisons located within Imperial County, and persons performing court-ordered community service. The city may also contract for the performance of graffiti removal services where necessary.

(e) A financial account shall be designated for the graffiti removal and prevention program. Any proceeds from fines and damages repaid which are collected by the city for graffiti-related offenses shall be deposited in this account, and the account shall also accommodate financial contributions and donations of materials and supplies to aid in the prevention or abatement of graffiti within the city.

(f) In order to have a minimum adverse effect on the aesthetics of the community, the program established shall provide that at least three (3) colors of paint be available for use to repaint graffiti-damaged surfaces. The city may use other available techniques, where appropriate, to eradicate graffiti from public and private properties.

(g) The program shall also include a long-term program to minimize the presence of or the creation of new graffiti-attracting surfaces within the city.

(h) It is recognized that it may not be possible, given available resources, to eliminate graffiti from property within the city; nevertheless, the city shall make all feasible efforts to do so under the graffiti removal and prevention program.

(Ord. No. 17-08, § 1, 6-20-17)

(a) Pursuant to section 53069.5 of the Government Code, the city manager is authorized to offer a reward of one hundred fifty dollars ($150.00) for information leading to the arrest and conviction of any person in violation of Penal Code section 594 by the use of graffiti.

(b) The person committing the graffiti vandalism shall be liable for the reward paid pursuant to this section.

(c) Although no law enforcement officer, municipal officer, official or employee of the city shall be eligible for the payment of any reward established herein, the person committing the graffiti vandalism shall still be liable for the amount of the reward authorized under subsection (a); and said moneys shall be deposited in the city's account designated for graffiti removal and prevention.

(Ord. No. 17-08, § 1, 6-20-17)

(a) Whenever the city manager, or designee, determines that graffiti exists on any surface of any property within the city, which graffiti is visible from the street or other public or private property, the city shall notify the responsible person, and owner's representative, if applicable, of the existence of graffiti as a nuisance subject to abatement pursuant to this article.

(b) The notice of violation and order to abate shall be as provided in section 18-142.

(c) A responsible person may file a written objection to the notice of abatement within seven (7) days of the date of the notice; and, in such cases, the city manager shall appoint a hearing officer to review whether sufficient grounds existed to determine that the existence of graffiti vandalism constituted a nuisance as defined in this article. A hearing shall be conducted within seven (7) days of the date of the appeal; and, upon the conclusion of the hearing, the hearing officer shall decide whether such notice was properly issued; and the hearing officer may extend, for a period of up to seven (7) days, the deadline for compliance with the notice to abate. The decision of the hearing officer that a nuisance exists, and the date of required abatement, shall be final.

(Ord. No. 17-08, § 1, 6-20-17)

(a) It shall be unlawful for any responsible person or owner's representative to permit property that has been defaced with graffiti to remain so defaced for a period of fifteen (15) days after having been given a notice of the violation unless the city manager, or designee, determines that either of the following conditions exists:

(1) The responsible person or owner's representative can establish a lack of financial ability to remove the defacing graffiti. In such cases, the responsible person or owner's representative shall execute a graffiti removal authorization agreement; and the city shall have the right to remove the graffiti.

(2) The responsible person or owner's representative can establish that there exists an active program for the removal of graffiti and has scheduled its removal. In such cases, it shall be unlawful to permit the property that has been defaced to remain defaced longer than the time agreed upon by the city manager, or designee, as being just and reasonable, but not more than twenty-one (21) days after the notice of violation has been given.

(Ord. No. 17-08, § 1, 6-20-17)

(a) The notice of violation and order to abate graffiti shall be served upon the owner(s) of the affected property, as such owner's name and address appears on the latest equalized property tax assessment rolls of the County of Imperial. In addition, if there is a commercial tenant or tenants using the premises, the notice shall also be served on said tenant or tenants. If there is no known address for the owner, the notice shall be sent in care of the property address. In addition, where the property is occupied, a copy of the notice will be delivered to the occupant.

(b) The notice of violation and order to abate graffiti as a nuisance may be served by either of the following:

(1) Personal service on the owner or owner's representative.

(2) By registered or certified mail addressed to the owner at the last known address of said owner. If this address is unknown, the notice will be sent to the property address.

(Ord. No. 17-08, § 1, 6-20-17)

(a) Upon failure of a responsible person or owner's representative to remove the graffiti as required by the notice to abate issued pursuant to this article, the city manager, or designee, shall attempt to secure a graffiti removal authorization agreement.

(b) If a responsible person or owner's representative fails to remove the offending graffiti within the time period specified by the notice to abate, or any determination made by the city pursuant to section 18-141, or if the responsible person refuses to grant consent to the city for entry onto the property by a graffiti removal authorization agreement, the city manager, or designee, may commence abatement and cost-recovery proceedings for the removal of graffiti.

(c) Upon failure by any person to comply with the provisions of subsection (b), the city manager, or designee, is authorized and directed to cause the graffiti to be removed as soon as practicable by the use of city employees, volunteers, community service workers, or contractors; and the city and its agents are expressly authorized to enter upon the premises for the purposes of graffiti abatement. All reasonable efforts to minimize damage from such entry shall be taken, and any paint used to remove graffiti shall be as close as practicable to the background color(s).

(d) When graffiti has been abated by the city due to the refusal of a responsible person to do so, or failure to execute a graffiti removal authorization, the property owner shall reimburse the city for the total cost of the removal of the graffiti, which costs shall include labor, materials, preparation of specifications and contracts, and inspections.

(e) The city manager, or designee, shall furnish the property owner with an itemized statement of the city's costs to remove the graffiti. The property owner may appeal the amount of such proposed assessment of costs within seven (7) days of the date of the statement by filing a written appeal with the city manager. If no such appeal is filed, the amount billed the property owner shall be presumed correct, due and payable. If an appeal if filed, the city manager shall appoint a hearing officer to review the statement of costs and review any evidence or information provided by the property owner that such costs are not correct or reasonable, such review to be completed within ten (10) days from the date of appeal. The hearing officer shall make a decision to uphold the statement or modify it based on the evidence and information presented during the review. The written decision of the hearing officer shall be final and conclusive, and a copy of such decision shall be furnished to the property owner.

(f) If the amount billed to the property owner has not been paid within sixty (60) days from the date of the city's bill, the city manager, or designee, may seek to recover the city's expenses in any manner legally available to the city, including but not limited to a special assessment or court action.

(Ord. No. 17-08, § 1, 6-20-17)

The city and its officers and employees may exercise any of the following actions, without limitation, to minimize the continuing presence of graffiti within the city:

(a) Work with property owners to retrofit existing graffiti-attracting surfaces with such features or material as may be necessary to reduce the attractiveness of such surfaces for graffiti, or to permit more convenient or efficient removal of graffiti.

(b) Require that all gas, electric, telephone, water, sewer, cable, telephone or other utility operating within the city paint their above-surface metal fixtures with a uniform paint type and color approved by the director of public works.

(c) Impose conditions on the issuance of encroachment permits to minimize the creation of graffiti, or to facilitate its removal if such vandalism occurs.

(d) Impose conditions on tentative parcel maps, permits, variances, or other land use actions subject to regulation by the city, which conditions may include any of the following:

(1) Application of anti-graffiti material to publicly viewable surfaces of improvements to a site.

(2) Use of nonsolid fencing, where appropriate.

(3) Use of landscaping plants designed to cover large expansive walls, or make them less accessible to graffiti vandals.

(4) Use of architectural design to break up long, continuous walls or solid areas.

(5) Use of additional lighting in areas likely to be the target of graffiti vandals.

(6) Grant of a right of continuing access to the city for parcels for the purposes of removal of graffiti from graffiti-attracting surfaces.

(7) Supply to the city for a period of two (2) years after the sale of the final lot within any development sufficient paint and or other anti-graffiti material for use within the development to remove graffiti.

(Ord. No. 17-08, § 1, 6-20-17)

If any provision, clause, sentence or paragraph of this article or the application thereof to any person or circumstance is held to be invalid, such invalidity shall not affect the other provisions of this article which can be given effect without the invalid provision or application; and to this end the provisions of this article are declared to be severable.

(Ord. No. 17-08, § 1, 6-20-17)